Carter v. USDA et al

Filing 8

ORDER adopting in part Report and Recommendations re 5 ; ORDER REFERRING CASE to Honorable Barry A. Bryant re Motion for Service as it relates to FOIA appeal #2015-FNS-00207-A. Signed by Honorable Susan O. Hickey on September 30, 2016. Motions referred to Honorable Barry A. Bryant.(cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
JESSIE CARTER

PLAINTIFF

v.

Case No. 1:16-cv-1050

UNITED STATES DEPARTMENT OF AGRICULTURE,
and JENNIFER WEATHERLY,
In her official capacity

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed June 20, 2016, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 5).

Plaintiff Jessie Carter has timely filed objections to the Report and

Recommendation (ECF No. 6), along with an addendum. (ECF No. 7). The Court finds this
matter ripe for consideration.
I. BACKGROUND
This case arises from Freedom of Information Act (“FOIA”) requests submitted by
Plaintiff to the United States Department of Agriculture (“USDA”). The record shows that
Plaintiff submitted a FOIA appeal 1 (“FOIA #2015-00207”) with USDA on June 23, 2015, which
was marked as “received” by USDA on July 8, 2015. Plaintiff submitted a second FOIA request
(“FOIA #2015-04394”), dated July 2, 2015, which was denied by USDA on August 6, 2015
because the requested information from the National Disqualification List violated the privacy
rights of individuals. 2 In March 2016, Plaintiff consulted U.S. Senator John Boozman’s office,
and was advised to submit a revised version of FOIA #2015-04394 to USDA. Plaintiff did so,

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The record does not contain any information concerning the original FOIA request that Plaintiff sought to appeal
by submitting FOIA #2015-00207, other than the fact that it sought names of institutions on the National
Disqualified List from 1998-2001 and whether funds were owed to programs. (ECF No. 1).
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USDA’s August 6, 2015 denial of FOIA #2015-04394 stated that Plaintiff had 45 days from that date to file an
appeal.

rewording certain language in the request and submitting a third FOIA request to USDA (“FOIA
#2016-02999”). On March 28, 2016, USDA marked FOIA #2016-02999 as “received.”
On June 7, 2016, Plaintiff filed a pro se action in this Court. Plaintiff’s Complaint
requested that USDA be enjoined from withholding requested agency records. On June 20,
2016, Judge Bryant issued a Report and Recommendation, recommending that Plaintiff’s Motion
for Service (ECF No. 2) be denied and Plaintiff’s case be dismissed in its entirety. Judge
Bryant’s Report and Recommendation stated that Plaintiff has not presented a claim upon which
relief may be sought because he has not shown that he has exhausted USDA’s FOIA
administrative appeals process before initiating this action. Thus, Judge Bryant concluded that
the federal judiciary does not have jurisdiction to hear the FOIA dispute, and recommends that
Plaintiff’s case be dismissed. On July 7, 2016, Plaintiff filed timely objections to Judge Bryant’s
Report and Recommendation. 3 On July 17, 2016, Plaintiff filed an addendum to his objections.
II. DISCUSSION
The FOIA was enacted “to facilitate public access to Government documents.” U.S.
Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (citation omitted).

To obtain access to

government records under the FOIA, two requirements must be met:

(1) a reasonable

description of the records must be made; and (2) the requestor must comply with the agency's
published FOIA rules. 5 U.S.C. § 552(3)(A). FOIA requires an agency to determine within 20
days after receiving the request (excluding Saturdays, Sundays, and legal public holidays)
whether documents should be provided or withheld, and the reasons therefor. 5 U.S.C. §
552(a)(6)(A)(i). This same 20-day time limit also applies to determinations on FOIA appeals. 5
U.S.C. § 552(a)(6)(A)(ii). An agency may, by written notice, obtain an extension of time for
unusual circumstances. 5 U.S.C. § 552(a)(6)(B).
3

Plaintiff’s objections included new evidence that was not part of the record before Judge Bryant issued his Report
and Recommendation.

2

“If an agency refuses to furnish the requested records, the requester may file suit in
federal court and obtain an injunction ‘order[ing] the production of any agency records
improperly withheld.’”

Taylor v. Sturgell, 553 U.S. 880, 885 (2008) (citing 5 U.S.C. §

552(a)(4)(B)). A requester must exhaust all administrative appeals before filing a FOIA suit in
federal court. See Brumley v. U.S. Dep’t of Labor, 767 F.2d 444, 445 (8th Cir. 1985). However,
a requester is considered to have exhausted all administrative remedies if an agency fails to
respond to a FOIA request within the time limit provided by 5 U.S.C. § 552. Wilson v. United
States, No. CIV 08-5022-RHB, 2009 WL 387086, at *4 (D.S.D. Feb. 11, 2009) (citing 5 U.S.C.
§ 552(a)(6)(C)(i)).
According to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues
related to Plaintiff’s specific objections. Plaintiff’s objections reference FOIA #2015-00207,
stating that USDA did not make a determination on the appeal within FOIA’s 20-day time limit.
Plaintiff also states that USDA did not respond to FOIA #2016-02999 within the 20-day period.
Lastly, Plaintiff states that “USDA has failed to respond timely . . . [to] the July 2015 request for
appeal # (2015-FNS-04394-F).” (ECF No. 6). Plaintiff concludes his objections by asking the
Court to order USDA to release the requested information in its entirety. The Court will now
turn its analysis to each of the three FOIA requests at issue in this case and discuss whether
Plaintiff exhausted his administrative remedies for each.
A. FOIA #2015-00207
According to evidence provided by Plaintiff, he submitted this FOIA appeal on June 23,
2015. The record does not contain any information concerning the original FOIA request that
Plaintiff sought to appeal by submitting FOIA #2015-00207. The appeal was marked “received”
on July 8, 2015. On July 14, 2015, this appeal was assigned the tracking number #2015-FNS00207-A, and Plaintiff was informed that the appeal had a target response date of August 5,
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2015. (ECF No. 1). On January 16, 2016, USDA sent Plaintiff an email with the subject title
“00207-A,” which stated that “the matter is currently under review.” (ECF No. 6). As far as the
Court can tell, this is the only evidence in the record concerning FOIA #2015-00207. 4
Plaintiff argues that USDA failed to make a determination on FOIA #2015-00207 within
the 20-day time limit set by law. The Court agrees. USDA received FOIA #2015-00207 on July
8, 2015, and had 20 working days to respond to the appeal. See 5 U.S.C. § 552(a)(6)(A)(ii). The
January 19, 2016 email from USDA to Plaintiff, in which USDA stated it was still reviewing the
appeal, shows that USDA had not yet made a determination nearly five months after the
determination was due.

The record contains no evidence to the contrary to show USDA

responded within the 20-day time limit or requested an extension of time. Based on the evidence
in the record, the Court concludes that Plaintiff exhausted his administrative remedies with
respect to FOIA #2015-00207 because USDA did not respond to the appeal within the 20-day
time limit set forth in 5 U.S.C. § 552. Therefore, the Court finds that it was proper for Plaintiff
to file a federal action regarding FOIA #2015-00207.
B. FOIA #2015-04394
The record shows that Plaintiff submitted FOIA request #2015-04394 to USDA on July
2, 2015. The record does not indicate what day USDA received this request, thus beginning the
20-day response period. On August 6, 2015, USDA responded, denying the request on the basis
that it requested information that would invade individuals’ personal privacy. The August 6,
2015 denial stated that Plaintiff had 45 days to appeal the decision.
Plaintiff’s objections state that “USDA has failed to respond timely . . . [to] the July 2015

4

Plaintiff provided an email exchange between himself and USDA, with a subject title “FOIA Appeal – Status
Update.” The Court believes the FOIA appeal discussed in this email exchange is unrelated to any of the FOIA
requests at issue in this case because the email did not indicate the appeal’s tracking number and its target response
date was different from those of the requests at issue in this case.

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request for appeal # (2015-FNS-04394-F).” (ECF No. 6). However, nothing in the record
indicates that Plaintiff appealed USDA’s denial of FOIA #2015-04394. The only other evidence
in the record relating to FOIA #2015-04394 is a “FOIA Requests Status” page that lists FOIA
#2015-04394’s status as “In Process.” (ECF No. 1). The Court is unpersuaded that this shows
that Plaintiff did indeed appeal the August 6, 2015 denial.

Plaintiff did not exhaust his

administrative remedies with respect to FOIA #2015-04394, and therefore, the Court finds that
Plaintiff could not file a federal action related to this request.
C. FOIA #2016-02999
The record indicates that Plaintiff submitted this request and it was marked “received” by
USDA on March 28, 2016. The request was assigned the tracking number #2016-FNS-02999-F.
(ECF No. 6).
Plaintiff’s objections argue that “USDA fail[ed] to respond timely in both request and
appeal of request # 2016-FNS-02999-F.” (ECF No. 6). The above-mentioned “FOIA Requests
Status” page lists FOIA #2016-02999’s status as “In Process.” (ECF No. 1). The record
contains no other evidence regarding FOIA #2016-02999, whether USDA made a determination,
or whether Plaintiff appealed, as he claims. Because of this, Plaintiff’s argument cannot be
substantiated. Thus, the Court finds that Plaintiff did not exhaust his administrative remedies
and could not file a federal action related to FOIA #2016-02999.
III. CONCLUSION
The Court adopts Judge Bryant’s Report and Recommendation as it relates to FOIA
#2015-04394 and FOIA #2016-02999. Plaintiff’s Motion for Service (ECF No. 1) is DENIED
IN PART and Plaintiff’s case is DISMISSED IN PART as each relates to FOIA #2015-04394
and FOIA #2016-02999.

The Court declines to adopt Judge Bryant’s Report and

Recommendation as it relates to FOIA #2015-00207. The Court refers this matter to Judge
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Bryant for further consideration of Plaintiff’s Motion for Service as it relates to FOIA appeal
#2015-FNS-00207-A.
IT IS SO ORDERED, this 30th day of September, 2016.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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